On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 95-11-0702.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Lyons.
Defendant Robert Arnwine appeals from an order entered by the trial court on January 3, 2008, denying his petition for post-conviction relief ("PCR"). We affirm.
In April 1995, defendant was arrested and charged with first-degree sexual assault, in violation of N.J.S.A. 2C:14-2a(1). On November 3, 1995, defendant executed a waiver of indictment and pled guilty to second-degree sexual assault, in violation of N.J.S.A. 2C:14-2b. Defendant provided the court with a factual basis for his guilty plea. In response to questions by his attorney, defendant admitted that during the month of November 1994 he had sexual contact with C.S. by touching her breasts for sexual gratification. Defendant additionally stated that in November 1994, C.S. was under the age of thirteen and he was more than four years older than C.S.
The trial court explained to defendant the consequences of entering the plea. Among other things, the court stated that defendant would be required to register and could be subject to community notification under Megan's Law, N.J.S.A. 2C:7-1 to 7-11. The court also informed defendant that he could be subject to community supervision for life ("CSL") pursuant to N.J.S.A. 2C:43-6.4. The CSL statute took effect on October 31, 1994. L. 1994, c. 130, § 2.
The court additionally told defendant that CSL meant that even though defendant had been released from confinement, someone would check on him and he would have to report on a regular basis. The court found that defendant understood the nature of the charges against him, the nature of the plea agreement and the consequences of entering the plea.
Defendant was scheduled to be sentenced on April 19, 1996. On that date, defendant informed the court that he wanted to retain a new attorney, withdraw his guilty plea and proceed to trial. The trial court adjourned the matter to May 8, 1996. On that date, defendant told the court that he no longer wanted to withdraw his plea and asked to proceed with sentencing. The court recessed the matter to afford defendant an opportunity to discuss the matter further with his family and his attorney.
Later in the day on May 8, 1996, the court questioned defendant as to whether he wanted to proceed with sentencing. Defendant again stated that he did not want to withdraw the plea. He said that he did not have any questions or concerns that had not been answered or resolved. The prosecutor noted on the record that defendant would be subject to CSL because the offense had occurred after October 31, 1994.
The court sentenced defendant to five years of incarceration and stated that defendant would be subject to CSL. A judgment of conviction was entered on May 8, 1996. The judgment did not, however, state that defendant would be subject to CSL. On June 23, 1997, the court filed an amended judgment of conviction imposing CSL. Defendant did not file a direct appeal from either the original judgment or the amended judgment.
On February 26, 2001, defendant's attorney filed a petition for PCR on defendant's behalf.*fn1 Defendant asserted that he was not subject to CSL because, based on newly discovered evidence, the offense had been committed prior to October 31, 1994. In support of this assertion, defendant submitted an affidavit from Sharon DeCamp ("DeCamp"), in which DeCamp stated that the incident "must have been prior to October 22, 1994."
By letter dated February 28, 2001, the court advised defendant's attorney that, if defendant had admitted to committing the offense after October 31, 1994, PCR would not be appropriate. On April 26, 2001, defendant's counsel withdrew the PCR petition and on August 22, 2001, filed a motion for withdrawal of the guilty plea.
In support of that motion, counsel asserted that defendant suffered from "intellectual limitations" due to head injuries he suffered in a motorcycle accident in 1990. Counsel stated that, because of these "mental limitations," defendant did not know at the time he entered the plea "exactly or even generally when the offense occurred." Counsel said that, when defendant entered the plea, he agreed that he had committed the offense in November 1994, but this was ...